June 2013
28/6/13
RUSANT LTD v TRAXYS FAR EAST LTD [2013] EWHC 4083 (Comm)
Injunction granted restraining presentation of winding-up petition on grounds parties had agreed to refer disputes to arbitration.
28/6/13
FONS HF (IN LIQUIDATION) v CORPORAL LTD [2013] EWHC 1801 (Ch)
A charge expressed to charge shares, debentures and other securities in a specified company did not charge rights under an agreement by which the chargor had provided unsecured loans to that company. The court summarised the correct approach to construction of the charge [39] and concluded that a simple loan agreement could not be regarded as a debenture or other security.
26/6/13
SEA-CARGO SKIPS AS v STATE BANK OF INDIA [2013] EWHC 177 (Comm)
A claim on a bank guarantee for money payable under a shipbuilding contract was dismissed on grounds that demand made on the guarantee was deficient. Although the demand did not have to repeat precisely the words of guarantee, it was deficient because it was ambiguous and failed to identify the provision of the shipbuilding contract under which there had been a default.
25/6/13
DANIEL STEWART & CO PLC v ENVIRONMENTAL WASTE CONTROLS PLC [2013] EWHC 1763 (QB)
Under an agreement for an investment bank to get a company listed on AIM, a fee was payable if the project did not proceed for reasons unconnected by the bank’s performance. The company regarded the bank’s valuation as too low and the listing did not proceed. The company was held liable to pay the fee. Although the bank had been required to act in good faith and rationally, the court refused to imply a term that the bank was required to act reasonably in deciding whether to proceed with the listing. The term was too uncertain and incapable of objective assessment.
24/6/13
GRUPO HOTELERO URVASCO SA v CAREY VALUE ADDED SL [2013] EWHC 1732 (Comm)
Issue based costs orders were refused as the issues had been interlinked. Instead the successful party’s costs were reduced by 25%.
24/6/13
EVANS v LLOYD [2013] EWHC 1725 (Ch)
A transfer of farm land as a gift had not been procured by undue influence. Although the donor had relied on the donees for accommodation, food and transport, the donees had not managed the donor’s finances and there had not been a sufficient relationship of trust or ascendancy. The gifts were explicable by reference to ordinary motives: the donor and donees were farmers, the donees had treated the donor as a member of their family, and the donor had wanted the land to be kept for farming. The donor had also received some limited legal advice. Although a gift could be set aside as an unconscionable transaction, the donees had not acted with the moral culpability required to engage that doctrine.
24/6/13
UL v BK [2013] EWHC 1735 (Fam)
Reviews principles applicable to the grant of freezing orders, including the need to provide solid evidence of a risk of dissipation in the sense of an unjustified dealing with assets. Considers when applications may be made without notice, and the need for cross-undertakings in damages. Explains that documents unlawfully obtained by copying without permission must not be read by a solicitor but should be returned to the owner. By failing to disclose the fact that documents had been unlawfully obtained, the applicant had breached the duty of candour required of applicants for freezing orders.
24/6/13
JSC BTA BANK v USAREL INVESTMENTS LTD [2013] EWHC 1780 (Ch)
A court order appointing a receiver to defend a claim did not confer on the receiver power to bring an appeal or to bring proceedings for a contribution. The court refused to extend the receiver's powers for those purposes.
19/6/13
HOUNSLOW BADMINTON ASSOCIATION v REGISTRAR OF COMPANIES, (Ch)
A charge created by a dissolved company and delivered for registration but rejected by the registrar, became effective when the company was restored to the register.
19/6/13
ANTONIO GRAMSCI SHIPPING CORP v AVIARS LEMBERGS [2013] EWCA Civ 730
The doctrine of piercing the corporate veil cannot justify treating an individual as having submitted to the jurisdiction on the basis that he is the controller of a corporate entity which is a party to a contract containing a jurisdiction clause.
19/6/13
WALSH v SHANAHAN [2013] EWCA Civ 675
A judge had been right to regard the defendant as substantially successful and to order the claimant to pay 90% of the costs down to the date for acceptance of the defendant’s CPR Part 36 offer which the claimant had rejected, and all of the defendant’s costs after that date.
19/6/13
LOUGHLIN v SINGH [2013] EWHC 1641 (QB)
Considers the test to be applied to determine whether a litigant has capacity to conduct litigation [19].
19/6/13
FROST v WAKE SMITH & TOTFIELDS SOLICITORS [2013] EWCA Civ 1960
A solicitor had not been negligent by failing to ensure that an agreement reached at mediation was enforceable. On the facts finality would not have been possible and a framework for agreement was all that could be expected. Although the solicitor should have advised his client whether a binding agreement had been made, the complaint that he had not done so had not been pleaded and could not now be argued.
18/6/13
EMPTAGE v FINANCIAL SERVICES COMPENSATION SCHEME LTD [2013] EWCA Civ 729
A claimant given negligent advice to increase her mortgage and invest in Spanish property, was entitled to compensation in respect of the Spanish property. The compensation scheme had been wrong to refuse compensation on the ground that the purchase of the Spanish property was unregulated business outside the scheme. All the loss flowed from the negligent mortgage advice which was within the scheme. Credit would have had to be given for the value of the asset purchased but the Spanish property had no residual value so there was no element of double recovery.
17/6/13
KOHLI v LIT [2013] EWCA Civ 667
In valuing a company’s shares on an unfair prejudice claim, the trial judge should have deducted certain group liabilities because they were significant debts which a purchaser would have expected to repay and they had a strong historical element so they were not day to day trading debts which would usually be ignored in an earnings-multiplier calculation. Having excluded a bank loan on that basis, the judge had correctly excluded interest on the loan from the calculation.
14/6/13
PEEL LAND AND PROPERTY (PORTS No. 3) LTD v TS SHEERNESS STEEL LTD [2013] EWHC 1658 (Ch)
Considers the principles to be applied in determining whether items affixed to land are chattels, fixtures or removable tenant’s fixtures.
14/6/13
ROGER WARD ASSOCIATES LIMITED v BRITANNIA ASSETS (UK) LIMITED [2013] EWHC 1653 (QB)
The claimant’s claim to rely on the extended limitation period under s 14A Limitation Act failed because the claimant had failed to plead and adduce evidence to prove that it did not have sufficient knowledge to bring a claim sooner than it did. From the evidence adduced by the defendant the court was satisfied that the claimant knew of the essential facts more than 3 years beforehand.
14/6/13
ELVANITE FULL CIRCLE LTD v AMEC EARTH & ENVIRONMENTAL (UK) LTD [2013] 1643 (TCC)
Considers the principles for an award of indemnity costs and for payment of costs in excess of an approved costs budget. On the facts indemnity costs were not appropriate and costs were limited to the approved budget. To increase a costs budget a formal application should be made before trial and good reason had to be shown.
13/6/13
R (ON THE APPLICATION OF WILLFORD) v FINANCIAL SERVICES AUTHORITY (No 2) [2013] EWCA Civ 674
On an application to quash an FSA disciplinary decision, the court refused to order that the applicant be given anonymity. Open justice required proceedings to be in public. Anonymity had to be strictly necessary for the proper administration of justice.
13/6/13
HART v BURBIDGE [2013] EWHC 1628 (Ch)
Shortly before her death the deceased transferred money to the defendants, one of whom was her attorney, to buy a property in which the deceased lived for a short while. There had been a relationship of trust and confidence between the deceased and the attorney and the transaction called for explanation. The evidential burden of disproving undue influence shifted to the defendant and had not been discharged.
13/6/13
CRAWFORD ADJUSTERS v SAGICOR GENERAL INSURANCE (CAYMAN) LTD [2013] UKPC 17
A claimant had not committed the tort of abuse of process because he could not be said to have had no intention of bringing the action to trial. But the claimant was liable for the tort of malicious prosecution, which includes bringing a civil claim which you know to be bad and which results in damage to the defendant’s reputation, person, liberty, property or finances.
12/6/13
PETRODEL RESOURCES LIMITED v PREST [2013] UKSC 34
The court will not pierce the corporate veil unless a person under an existing obligation/liability/restriction deliberately evades the obligation or frustrates enforcement by imposing a company which he controls. On the facts a husband had not evaded or frustrated any legal obligation to his ex-wife. But he had failed to comply with orders for disclosure and the court had been entitled to draw an adverse inference that companies held properties on resulting trust for him. As the husband was beneficial owner of the properties, in matrimonial proceedings the court could order that the properties be transferred to his ex-wife.
12/6/13
ATLANTIC ELECTRONICS LIMITED v COMMISSIONERS FOR HM CUSTOMS & REVENUE [2013] EWCA Civ 651
Although case management decisions may only be appealed in limited circumstances, it was sufficient to show that relevant considerations had been wrongly excluded and alone or together they had been material to the exercise of the relevant discretion. An appeal tribunal had correctly held that a lower tribunal had wrongly excluded evidence of a relevant criminal conviction.
12/6/13
JOSA v WHITE WATER COMPANY LIMITED, (Admin)
Permission to start an additional claim under CPR Part 20 against a third party was refused because it was a doubtful claim and would cause the trial of the main claim to be adjourned.
11/6/13
ROBERTS v BANK OF SCOTLAND [2013] EWCA Civ
£7,500 had been rightly awarded to a customer for harassment contrary to s 2 Protection from Harassment Act 1997. The customer had been bombarded with hundreds of automated phone calls about the state of her accounts when she had exceeded her credit limits.
10/6/13
DE FERRANTI v EXECUZEN LTD [2013] EWCA Civ 592
A default judgment entered without notice to the defendant should not be set aside under CPR r 3.10 unless the court is satisfied that the defendant has a defence with a real prospect of success or there is some other good reason to set the judgment aside.
10/6/13
REDSTONE MORTGAGES LIMITED v WIEMER, (Ch)
Alleged non-receipt of a letter of demand under a mortgage was no defence to a claim for repayment because the mortgage conditions deemed the demand to have served on the second day after posting even if the letter was not received. An allegation that the defendant had notified a new address for service had not been supported by the evidence.
7/6/13
SMAILES v McNALLY [2013] EWHC 1562 (Ch)
An extension of time for disclosure was granted even after four previous extensions. The respondents had suffered no significant prejudice and refusal of the extension would have been disproportionate. Although a more strict approach to case management was appropriate after 1 April 2013, unreasonable opposition to extensions of time should not be encouraged.
7/6/13
CIMC RAFFLES OFFSHORE (SINGAPORE) LTD v SCHAHIN HOLDING SA [2013] EWCA Civ 644
Although normally a court may be able to deal summarily with the question of law whether a variation to a principal contract fell within the purview of a guarantee, on the facts the court needed to have regard to the factual matrix. Summary judgment was not therefore appropriate.
7/6/13
INFORMATION GOVERNANCE v POPHAM [2013] EWHC 2611 (Ch)
Although a company was insolvent, the court exercised its discretion against making an administration order where most of the liabilities were to connected persons, and the director who had made the application had by the time of the hearing been replaced by two directors who opposed administration.
6/6/13
CENTREHIGH LIMITED v AMEN [2013] EWHC 1448 (Ch)
The court was satisfied that two holding companies had not controlled or funded litigation defended by a subsidiary. The holding companies were not therefore made subject to a third party costs order.
6/6/13
GROUP SEVEN LIMITED v ALLIED INVESTMENT CORP LIMITED [2013] EWHC 1509 (Ch)
Personal service of an application to commit for contempt may be dispensed with in exceptional circumstances. But a company could not be regarded as holding or controlling its assets in accordance with the respondent’s direct or indirect instructions within the meaning of the standard form freezing order, even if the respondent was the company’s sole director/shareholder. The fact that the respondent had procured the company to agree to accept a discounted sum in settlement of a debt owed to the company was not therefore a breach of the order made against him personally.
6/6/13
TOPLAND PORTFOLIO NO 1 LTD v SMITHS NEWS TRADING LTD [2013] EWHC 1445 (Ch)
A surety was discharged from liability under a guarantee of the lessee’s obligations in a lease which had been varied without the surety’s consent to allow the lessee to carry out works on the premises. The works had not been contemplated by the lease and the extra repairing obligations increased the risk of the lessee’s default. The variation could not be regarded as insubstantial or in the nature of a forbearance. There was no residual discretion available to the court to allow the guarantee to be enforced.
6/6/13
The English court had no jurisdiction to open secondary winding-up proceedings under the EC Insolvency Regulation 2000 in relation to Olympic Airlines which had been incorporated and was being wound-up in Greece. To open secondary proceedings there had to be an establishment in England, which meant a place of operations. At the relevant time when the petition was presented in England there was no place of operations here because the company had ceased all commercial activity and only had a skeleton staff for the purpose of the winding-up.
5/6/13
SHORELINE HOUSING PARTNERSHIP LTD v MEARS LTD [2013] EWCA Civ 639
It was inappropriate to strike out the claimant’s allegation that there was an estoppel by convention, or by representation, which prevented the defendant from denying that payments under a contract were to be at rates other than those specified in the contract. The allegation required a factual enquiry and the claimant had a sufficient prospect of succeeding in its argument that an entire agreement clause in the contract did not prevent it from relying on the estoppel.
5/6/13
BERNEY v SAUL [2013] EWCA Civ 640
A claim that solicitors had conducted a personal injury claim negligently was not time-barred. The claimant only suffered actual financial loss when she settled the personal injury claim for less than she could have obtained had the claim been properly conducted. That was less than 6 years before the negligence claim was started. Although actual damage can include liabilities which arise on a contingency, the solicitors’ failure to serve proper particulars of claim did not cause loss because it was unlikely to have prevented the court from giving permission to serve out of time.
5/6/13
SHEBELLE ENTERPRISES LTD v HAMPSTEAD GARDEN SUBURB TRUST LTD, (Ch)
For permission to be given to amend particulars of claim after judgment has been handed down the circumstances must be exceptional. On the facts that test was not satisfied.
4/6/13
WILLIAMS v GLOVER [2013] EWHC 1447 (Ch), [2014] 1 WLR 166
A right of appeal against a tax assessment was not property within s 436 Insolvency Act 1986 and could not be assigned by a liquidator.
3/6/13
BLEMAIN FINANCE LTD v CUGLEY [2014] BPIR 20
A transfer of property by the second defendant to the first defendant was void under s 284 Insolvency Act 1986 because it post-dated a bankruptcy petition presented against the second defendant, so the second defendant’s interest had vested in his trustee in bankruptcy. But the first defendant had been registered as proprietor and had granted a mortgage to the claimant at a time when no notice or restriction had been entered in the register, so the claimant’s mortgage was binding on the trustee under ss 58 & 85 Land Registration Act 2002. The trustee’s interest had not re-vested in the second defendant under s 283A by the time the mortgage was granted because the second defendant had not been living at the property when the bankruptcy order was made and the trustee had not been made aware that the second defendant had an interest in it. Even if the interest had re-vested, the second defendant had signed a form of consent to the mortgage. The second defendant’s claim to an overriding interest binding on the claimant was therefore dismissed.
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